A Federal Appeals Court has upheld a law passed in 1949 that bars protesters from the property on which the Supreme Court building is located:
The Supreme Court is designated as the ultimate protector of constitutional rights, but the guarantee of protest and free speech ends on the steps to the plaza in front of the court’s grand marble temple, a unanimous federal appeals court panel ruled Friday.
Demonstrators are allowed on the sidewalk in front of the court but not any closer to the famous portico promising “Equal Justice Under Law,” three judges of the U.S. Court of Appeals for the District of Columbia Circuit decided.
The fight over where protesters get to protest has been going on for years.
The appeals court judges upheld a 1949 law that forbids demonstrations on the grounds of the high court, on the premise that protests at the court’s doorstep might lead to the perception that the justices are swayed by vox populi rather than the dictates of the law.
“Allowing demonstrations directed at the Court, on the Court’s own front terrace, would tend to yield the opposite impression: that of a Court engaged with — and potentially vulnerable to — outside entreaties by the public,”wrote U.S. Circuit Judge Sri Srinivasan, who argued often before the court as a lawyer and is sometimes mentioned as a future Supreme Court justice.
On days when controversial cases are argued and decided, the 50-foot-wide sidewalks surrounding the court are filled with chanting, flag-waving, bullhorn-toting protesters of all stripes. The Supreme Court itself, in 1983, ruled that these sidewalks — on First Street NE, just across from the Capitol — are open for protests.
But demonstrators are not allowed any closer. The court in its 1983 decision did not address the protest restrictions on the court’s grounds, which include the 252-by-98-foot oval marble plaza, with its fountains, benches, flagpoles and steps leading to the court’s iconic, six-ton bronze doors.
Critics have found the no-speech zone around the Supreme Court ironic if not hypocritical. The current court considers itself a fierce protector of political speech, knocking down restrictions on corporate spending on elections, for instance. The justices also struck a Massachusetts law that limited speech around abortion clinics.
In 2010, because of security concerns, the court said the public was no longer allowed to enter through the massive front doors. Visitors must go through security checkpoints on the ground floor, although they may exit via the court’s front porch.
The 1949 federal statute makes it unlawful to “parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”
In 2013, U.S. District Judge Beryl Howell struck down the restrictions. “It cannot possibly be consistent with the First Amendment for the government to so broadly prohibit expression in virtually any form in front of a courthouse, even the Supreme Court,” Howell wrote in a 68-page opinion.
Within days, the Supreme Court instituted its own rules that essentially kept the restrictions in place, and the legal fight has continued.
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Srinivasan said the court is different from Congress, where people have a right to protest for political action. The plaza is designed as an extension of the court, he said, and restrictions on protests there need only be reasonable and viewpoint-neutral.
There is no suggestion that the law is discriminatory, he said: “Demonstrations supporting the court’s decisions and demonstrations opposing them are equally forbidden in the plaza.”
Srinivasan added: “Unless demonstrations are to be freely allowed inside the Supreme Court building itself, a line must be drawn somewhere along the route from the street to the Court’s front entrance. . . . Among the options, it is fully reasonable for that line to be fixed at the point one leaves the concrete public sidewalk and enters the marble steps to the Court’s plaza.”
I first wrote about this issue last October, just after the Appeals Court panel had heard oral argument in this case, which itself is a reflection of just how slowly some cases seem to move through the Federal Court system. As I noted at the time, the fact that the protests that would seem to be clearly protected by the First Amendment are forbidden on the property of the Supreme Court is incredibly ironic given the fact that the Roberts Court has been extremely aggressive at protecting First Amendment rights over the past ten years. During this period, the Court has struck down a civil verdict against the Westboro Baptist Church that had been won by the father of a fallen solider whose funeral the church was protesting. It has also struck down a Federal law that made it a crime for someone to lie about having received military honors, a California law regulating the sale of “violent” video games, a Massachusetts law restricting the space within which protests can take place at abortion clinics, and allowed a lawsuit challenging an Ohio law purporting to punish untruths told in an election campaign to proceed forward. All of these decisions have either been unanimous or nearly so, leading many legal commentators to argue that the Roberts Court has been one of the most aggressive Courts when it comes to protecting First Amendment rights. On the campaign finance side, the Court’s rulings in cases such as Citizens United and McCutecheon v. FEC were both based largely on the First Amendment and the majority’s argument that the right of people to participate in the political process outweighed any others concerns. While those decisions have proven to be more controversial than the others, they lend further to support for the arguments in favor of the Robert’s Court’s reputation as a First Amendment champion. For that reason alone, the ongoing restrictions regarding public protests on Court property are at the very least ironic if not contradictory.
The justifications used the Court of Appeals in upholding this law are utterly absurd. Essentially, Judge Srinivasan, a recent Obama appointee, argues that the 1949 ban is necessary to protect the “dignity” of the Court from the impression that the Justices are can be influenced by public opinion. This argument belies a notion of a non-political Supreme Court that simply doesn’t hold up to reality. While it’s true that Justices, and Judges, are appointed for life terms largely for the purpose of shielding them from political pressure, to deny that politics plays a role in how the Court is composed or the kinds of cases it hears it absurd. Obviously, it would be improper for a Justice to base their opinion in a particular on public opinion rather than on the law and the facts of the case before them. Even taking that into account, though, the legitimate concern about limiting the influence of public opinion on judicial decisions is not a sufficient reason on a blanket ban on speech on the property of the nation’s highest court. To take Judge Srinivasan’s logic at face value, one would have to believe that the Justices of the Supreme Court are so weak-willed that they would influenced by protesters that, given how the building is constructed, they would not even see and probably cannot hear. It’s obvious, though, that it isn’t the risk of improper influence that concerns Judge Srinivasan, but the apparent belief that allowing protests on Court property would somehow taint the image of the Court itself. This is not a sufficient justification for a blanket ban on First Amendment activity, and it cannot withstand scrutiny under the Court’s own First Amendment case law. The fact that Srinivasan is apparently on the short list of potential future Democratic nominees to the Supreme Court just makes his opinion here all the more troublesome.
The Court’s ruling here would seem to be in direct conflict with the Supreme Court’s 2013 ruling in McCullen v. Coakley. In that case, a unanimous Court struck down a Massachusetts law that barred any protests at all within a certain distance from an abortion clinic. In that case, Massachusetts barred protests on the ground that it was necessary to protect patients and clinics from harassment, but the Court ruled that even if that justification were acceptable, a blanket ban on any First Amendment activity on public property would simply impermissible. Using the logic in that case, it is hard to see how a blanket ban on protests on Supreme Court property, which is after all public property could stand. The Court of Appeals’ arguments about protecting Justices from the vicissitudes of public opinion and protecting the image of the Court simply don’t seem like they can stand given that the Justices rejected similar arguments from the Commonwealth of Massachusetts.
None of this is to say that there couldn’t be some regulation of protests on the Court’s property. The Supreme Court has long recognized that, even under the First Amendment, government entities have a right to make reasonable time, place, and manner regulations when it comes to otherwise protected activities such as protests and marches. These restrictions, however, must be content neutral, and it’s generally recognized that blanket bans on protest are impermissible absent a very compelling interest that cannot be achieved by less restrictive means. In this particular case, the Court and the U.S. Marshall’s charged with providing security, could most certainly establish some regulations regarding the size and location of protests in the interests of things such as crowd control or security. For example, a regulation banning protests on the steps of the Supreme Court Building, but allowing it on the plaza, would probably be permissible given the obvious security and public safety issues involved. Similarly, as with any other protest, people who interfere with legitimate security operations, who become disorderly, or refuse to disperse after the agreed-upon end of the protest could be arrested. Beyond those types of legitimate security and safety regulations, though, there appears to me to be no legitimate justification for the blanket ban on protests that has been in place since 1949.
From here, this case can take one of two paths, both of which would ultimately lead to the Supreme Court. The Plaintiff could chose to seek review directly to the Supreme Court, or it could seek a hearing before the entire D.C. Circuit Court of Appeals, after which either party could then seek Supreme Court review. Which ever option is chosen, though, at some point the Justices are going to have to rule on this matter. Back in 1983, the Court dealt with this in United States v. Grace and ended up striking down a ban on protest signs, but only applied to the public sidewalks in front of the Court building. This time, they would be required to deal with the law as a whole and it’s hard to see how they could let it stand and still be consistent with the more than decade of First Amendment law that they established.
Here’s the opinion:
